Recently, I came across a speech given by Thomas O. Barnett (Assistant Attorney General, Antitrust Division, U.S. Department of Justice) entitled Antitrust Update: Supreme Court Decisions, Global Developments, and Recent Enforcement (link). I’d like to point out some highlights of this lecture:
- Supreme Court is nearly unanimous in its recent antitrust rulings (77 votes for majority decisions and 9 dissents – those are stats for last 10 cases). Barnett concludes that dissents were based on grounds not connected directly with antitrust (like stare decisis).
- In Leegin Creative Leather Products, Inc. v. PSKS, Inc. (2007), Supreme Court agreed to use rule of reason instead of per se illegality in case of vertical resale price maintenance (RPM), thus overruling its 1911 decision which deemed such agreements as illegal per se.
- In Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co. (2007), Supreme Court extended presumption of legality to below-cost predatory buying (it was a step further from 1993 Brooke Group case in which such presumption was applied to above-cost predatory pricing).
- In F. Hoffman-La Roche Ltd. v. Empagran S. A. (2004) Supreme Court reversed D.C. District Court decision allowing foreign plaintiffs injured by actions illegal under Sherman Act to sue in the U.S.
- Barnett rejects the opinion that DOJ is not fighting vigorously with anti-consumer conduct. To prove the opposite, he presents following data referring to AD’s criminal cartel enforcement:
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